Body Art and Dress Codes: How Much Say Does an Employer Have?
More and more people are getting tattoos.
Pew Research Center reported that nearly 40 per cent of American Millennials had a tattoo — far more than the Baby Boomer generation (only 15 per cent of people surveyed in that age group reported having a tattoo).
This raises the question of dress codes at work: Are employers allowed to ask employees to cover up visible tattoos while on the job?
Generally speaking, employers are entitled to set the rules of the workplace. However, there must always be a balance between personal rights and legitimate business interests. We used to discuss regulating appearance in the context of clothing.
Now, we must also address body art — tattoos and piercings.
That same Pew research I referenced earlier? It found that 25 per cent of Millennials had a piercing somewhere other than an earlobe.
While courts are willing to allow employers to dictate dress codes so long as they are within reason and do not discriminate or sexualize employees, they are more reluctant to allow employers to regulate matters of appearance that are more permanent, such as tattoos, piercings, hair length, or facial hair. Put another way, courts are far more likely to enforce a “no jeans” rule than a “no tattoos” rule, since an employee can easily remove their jeans for work and then put them back on after their shift is done.
Two rulings shed light on how an arbitrator or the courts will deal with this issue.
In 2010 the Ontario Provincial Police implemented a policy that ordered officers to cover up visible tattoos after a high-ranking officer saw a constable on patrol with tattoo-covered arms and thought he was a criminal. The constable filed a grievance and in 2011, an arbitrator struck down the policy.
It’s not just police either.
In 2009, a Quebec judge ruled that visible tattoos were allowed on the job. The judgement came after a daycare worker’s employer ordered her to cover up a dragon tattoo on her shoulder. The judge argued that a tattoo ban violated the worker’s right to freedom of expression.
Can an employee be fired because they have a tattoo?
As is often the case in employment law, the answer is that it depends. If there is a workplace rule against offensive tattoos, and if that rule is deemed to be reasonable in the circumstances, then there might be cause for discipline and, ultimately, dismissal. However, that is far from guaranteed. That said, most workers do not have job security and can be let go at any time, as long as they receive the notice or pay to which they are entitled. So they could be dismissed without cause, though they would be entitled to some notice or compensation.
The other aspect is the risk of discrimination.
Are employers rejecting candidates because they have tattoos? Almost undoubtedly, at least in some areas. Is that unlawful? In most cases, no, because discrimination is only unlawful when it is based on a ground protected by human rights legislation, such as gender, religion, or disability. If the tattoo was a religious requirement, then the discussion would be very different, and the individual would have a stronger case.
Employers need to ensure that any policy they put in place doesn’t overstep. If you’re an employer that wants to create a dress code policy that includes body art, we can help you understand what the courts are willing to allow.
We want to thank Guest Blogger and RHBOT Member, Stuart Rudner, Employment Lawyer & Mediator at Rudner Law! If you are an employer with questions or comments or if you’re an employee who has been asked to cover up body art by your employer please feel free to contact him.
Stuart is the founder of Rudner Law. In 2016, 2017, 2018 and 2019 he was selected by his peers for inclusion in ‘The Best Lawyers in Canada’ in the area of Employment Law, and he has been repeatedly named in Canadian HR Reporter’s Employment Lawyers Directory (a comprehensive directory of the top employment law and immigration law practitioners in Canada). He was also named one of Canada’s top Legal Social Media Influencers. Rudner Law was selected as one of the Top Three Employment & Labour Boutiques in Canadian HR Reporter Readers’ Choice Awards for 2019 and won the Canadian Employment Law Firm of the Year for 2019 in the Global Law Experts Annual Awards.
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